Wednesday, September 17, 2014

Last night I took a short break from my scheduled reading and opened a Linda Fairstein crime thriller. Thr protagonist in her blockbuster series is a female assistant district attorney with expertise in sex crimes and homicides. I was traveling on very familiar ground. I'd been there and done all that, but not in New York City. I prosecuted homicides in the Morongo Basin area of the San Bernardino county high desert.

Not all prosecutorial agencies encourage or even permit prosecutors to visit crimes scenes, but New York County does, and as television audiences worldwide know, so does L.A. County. Remember the shot of Maria Clark walking down the sidewalk toward Nicole Simpson's Brentwood apartment?
Did Johnnie Cochran get her kicked off the case for visiting the scene? No he did not. The noise made by defense attorneys suggested deputies who visit scenes must recuse themselves from trial, is because there is no police report that equals a visit to a homicide scene. Homicide scenes carry a message. My first one screamed.

I remember my first homicide scene vividly. It was the final weekend of a month's vacation I had taken after a thirteen victim child sexual assault case, twelve little Boy Scouts and one of their baby sisters. We arrived home from a trip to Colorado on a Rocky Mountain high on the evening the call came. We were had not unpacked our suitcases. I was still wearing my travel clothes, a pair of DKNY jeans and a button down shirt. My sons were sitting on the sofa with my husband watching television when the telephone rang. I was in the kitchen with the popcorn, closest to the phone.
'If it's Mother, tell her I fell out of the car somewhere in Arizona.'
It was not my mother-in-law. It was my boss and he wasn't looking for me. He was looking for another Morongo felony deputy who was not answering his pager. He apologized for disturbing me on the last days of my vacation, but wondered if I had a different number or some idea where my colleague might be reached.
'Unless, of course, you are willing to go to the scene of a double in 29.'Of course I was.
The information he provided over the telephone was sketchy. If I responded I would be briefed by officers at the scene. He had the address, a general description of the location, and the added information that both victims were female and probably rape victims. Local law enforcement and NCIS were controlling the scene. The homicide detail from Specialized Detective Division in San Bernardino was meeting at the Morongo Station while the crime lab processed the crime scene. The designated case agent had requested the presence of a deputy district attorney and would be returning to the crime scene as soon as he doled out assignments to his team. Because of our proximity to the Marine Corps Air Ground Combat Center at 29 Palms, California, all CID and NCIS agents had been cross-deputized to assist in investigations that might involve personnel on the base. I was happy to hear they were involved. Most had equivalent training to FBI agents and in 20 Palms,they knew who most of the players were.

It was a very warm summer night. I drove to an apartment complex a block off the highway just beyond the center of town in an area of small apartments in the city of Twenty Nine Palms. I knew the area well. The murder scene was in a small single story court just behind one of our favorite family burger joints, Andrea's. I pulled up behind the substation commander's personal vehicle. His wife was in the car. He had only stopped by on his way home from dinner to thank the military agencies for their support. He pointed to an apartment where two white vans were parked. Before political correctness came into vogue, they were referred to as meat wagons.The scene was still being processed and the bodies 'had not been rolled.' The coroners men were standing by, waiting for something to happen. So was half of the population of central Twenty-nine Palms. Until the bars closed, the crime scene was the only show in town. I had to elbow my way through a crowd to get to the evidence tape.

The perimeter was being manned by a detective who had recently transferred to the Morongo station from Narcotics. He did not recognize me in my designer jeans and shined a flashlight in my eyes as if he were conducting a horizontal gaze nystagmus test. As soon as I was confident he would not shoot me for reaching into my fanny-pack, I produced my District Attorney's office. I.D.

''The only good thing about this one,' he said once he was convinced I was who my I.D.said I was--'is someone left the air conditioning on.' Up until he made the remark, it had not sunk in that I soon would be entering an apartment where there were dead bodies. I had heard my share of gut-wrenching crime scene stories. I have since arrived at an untested theory that many women handle murder scenes better than most men. Motherhood and our physiology make us immune to feces, blood and body fluids. Nothing protects us from the pathos.

'I'll let them know you're here. You'll need to put on some booties, and wait for one of the techs to walk you in. The front room is pretty well processed. There's an open kitchen off a living-dining room, and remnants of a party. The pizza looks to have been there since the night before. I think it was one of the party guests who came by today with a buddy and discovered the bodies. The ugly stuff is in the bedroom and bath behind, and from the looks of it, they'll be lucky to have it processed before the middle of next week.'

We were waiting for one of the crime lab people to come outside to collect me when Detective Dick Bunn came up the walk. In those days, Dick was a math teacher at Yucca Valley High School where my daughter taught English. Each afternoon as soon as the bell rang, he was out the door and on his way to the sheriff's office annexed to the Joshua Tree courthouse. Somehow he managed to put in a full forty hour shift per week at his second job as a reserve and he had enough experience and smarts to get assigned as a substation detective. I do not know how old Dick was when his hair turned silver, but for all I know he was born with it, and when I see him out in town since we have both retired, I think it's actually getting thicker. Not once in the thirty years I've known him have I seen Dick when he wasn't wearing cowboy boots and a western shirt. He and his wife Rex got married on horseback on the O.K Corral movie set in Pioneer Town. I am always glad to see him, but never more than on that night.

'One of the victims is Mandi Scott,' he said.
I knew her mother. Almost everyone I knew from the Morongo station knew Debbie. She was a popular bartender with an open, pleasant demeanor. I had met her daughter Mandi in the course of a bicycle theft in which the victim was a highway patrolman's step-daughter. The bicycle had been recovered hidden on Debbie's porch. Mandi said it had been given to her by one of her mother's boyfriends. Maybe. I did not prosecute juveniles, but we did go forward on a charge of receiving stolen property with Debbie as a defendant. The next month she called me to help her with a problem with neighbors who objected to her keeping her pit bull in the front yard. She had also called a reporter from the L.A. Times who did a story on discrimination against owners of pit bulls. Debbie wanted me to give the reporter a statement. Debbie had excellent marketing skills, and I liked her. She added a touch of glamour to the community.I did not want to believe that the Mandi Scott in the splayed on the bedroom floor was the same girl I had interviewed a couple of years earlier in the bicycle case.
'Not Debbie's Mandi?' I asked with a prayer in my voice. My usually surly cowboy detective friend merely nodded and one of the female criminalists came and tapped me on the shoulder.

From this point it, it is appropriate fto mention there are no privacy issues in what I am about to describe. There were two syndicated television reenactments of what follows and with Debbie's stage management and promotional skills, a true crime book was authored by a writer named Deanne Stillman which sold well. It took an editorial stand condemning the United States Marine Corp as much as the serial rapist who butchered Debbie's daughter, a USMC named Valentine Underwood.
I declined to be interviewed by Ms. Stillman because the case was still active and I took exception to its editorialization. Whether I agree with its message, it is a well written true crime book.

I harbor no doubt as to defendant Valentine Underwood's guilt. He has recently been extradited to an eastern state and convicted of a brutal 1988 rape in what had been a cold case until a lab in Massachusetts matched a rape kit in the crime to the DNA of Valentine Underwood, who is serving two California sentences of life without parole for the murders of Mandi Scott and her friend Rosie,whose family has repeatedly requested that her last name be withheld.

I had seen dead bodies in viewing room in funeral homes. I had never attended an autopsy and blamed the omission on my trial schedule and an incident in high school science lab when I suffered a severe reaction to formalin while dissecting a cat.. I always took the time to drive to San Bernardino to confer at length with the forensic pathologist, the late Irving Root, who did not mind if I missed the autopsy as long as I understood his theory of how death occurred and stayed for lunch.Many of the cops I worked with thought Irv and I were cousins. We worked well together. The double in 29 was my first crime scene, but not my first homicide.

Thanks to Dick Bunn, I was aware I would be seeing a young girl I had known when she was thirteen and very much alive. I promised my escort to stay on the plastic and not to touch anything. I would enter the bedroom when they were ready. At the onset, I was to stand in the doorway and survey what could be seen from there.

And there was Mandi.
Dead on her back on the bedroom floor.
She had been stabbed thirty three times.
Her lace demi bra was wound around her head at the level of her mouth, perhaps as a gag, perhaps as a humiliation. As I recall, bikini panties dangled from an ankle.I know they were present--colorful and sexy black and either red or yellow lace. Her eyes were open, her hands and arms posed like a china doll. Her dark hair was hardly disheveled. She was a plump, pretty girl, even in death.
I could see into her chest cavity.
Her sixteenth birthday was a few days off.

Her friend Rosie, the tenant of the apartment, was in the tiny bathroom, nude in front of the toilet. Her eyes were open and her lips were pursed. As I recall, at least one of her hands was in a tight fist. It was difficult to process the bathroom scene because there was a a stain on a towel or blanket which the criminalists thought might include a footprint and they did not want to risk unfolding it. I viewed the slaughter from the bathroom door.
Rose was in her twenties, a good deal older than Mandi, a tiny Southeast Asian of remarkable beauty. She had two children but I do not recall where they were staying the weekend of Rosie's party.
She, too, had been stabbed thirty-three times, the number on Valentine Underwood's basketball jersey. Valentine was a basketball player.

The lead detective on the case had been at a briefing. He arrived in time to offer me a cup of warm black coffee. The reason why he had summoned a deputy d.a. to the scene had to do with evidence preservation. I finished my coffee and returned with him to the scene. Even though the time of death had been many hours earlier, the room had been kept so cold that the smell of death was faint, subtle, like flowers at a funeral.

"Did you happened to notice the stain on the wall?'
I had. It had been pointed out to me by the criminalist, but it would have been hard to miss.
'The bloody handprint,' I said.
'As I see it, we have two choices: We already have taken photographs of the print, and if we process the print where it is, we will take more photos and videotape every stage. The alternative is to remove a section of the wall, do the testing at the lab and preserve the print as a trial exhibit. But to do that, someone from your office is going to have to request it.'

It didn't call anyone above my pay grade and I did not hesitate. For me, the decision was a no brainer. The room was ruined anyway. The carpet was saturated. There were blood spatters everywhere. Hanging a new section of dry wall would be a minor item. A hung jury and retrial would cost the county more than compensating the owner for the entire apartment complex.The only salient question was whether a jury would be as convinced by an expert with a videotape and photographs as opposed to one with a laser pointer and a bloody hand print preserved on drywall for jurors to see and examine in the deliberation room.
'Take the wall,' I said.
Those words of mine were memorialized on an episode of The Prosecutors. I have a copy of the director's cut on a useless old VCR in a cabinet in the same room where I am writing this post.
The immortal words of Linda Root: "Take the bloody wall."

Afterthoughts, Vents and Procedural Notes:

1) Dick Bunn was the first person to place Valentine Underwood in the neighborhood on the night of the crime. His was a name known to the two of us because of a rape prosecution that went nowhere when the victim refused to cooperate and recanted. Her father was a high profile military officer and her parents did not want her to participate. We could not find her to serve her and she had made it known she would not come to court voluntarily. At that time, our office had a policy not to take a case to a jury with a victim whose testimony would have to come in as impeachment testimony from a police officer. That was prior to rape shield legislation and new interpretation of the hearsay laws. Dick Bunn and I and the two NCIS officers who assisted in the investigation always thought Underwood was a serial rapist and likely a serial killer, but we could not interest other jurisdictions where Underwood had lived where there were unsolved crimes with the same M.O. in pursuing it. But this post is not about the Underwood case, about which I could write a book. Mine would be different from Deanne Stillman's and probably would not sell nearly as well.

2) For anyone curious about the investigation and what turned out to be the most prolonged judicial event in the history of San Bernardino County, there is Ms. Stillman's book Twenty-Nine Palms, a True Story of Murder, Marines and the Mohave, available on Amazon, a worthwhile read for anyone who redacts the roasting of the United States Marine Corps. I would have written the same story differently.

2) Why I did not try People v. Underwood myself is for another forum on the topic of interoffice back-stabbing. The defense brought a recusal motion based on my presence at the crime scene, an issue that has been litigated ad nauseum in California courts and other venues.. However, my supervisor told me had been informed by a member of our staff that the judge was going to grant the motion. His Honor later told me he had prepared a ruling denying the defense motion, had hinted as much to both attorneys, and he soundly scolded me for recusing myself when there was no basis for it. Perhaps it was an innocent misunderstanding on the part of a colleague, and perhaps it was not. Sobeit. Whatever the reason, the case was assigned to a fine prosecutor in the Victorville District Attorney's office, Gary Bailey. He got his verdict but it took years of spurious defense motions and shenanigans to do it, while my own career advanced. There was always another murder about to be committed. Whoever thought they were robbing me of a plum was doing me a favor. I was the lucky one. While Mandi Scott's murder was languishing in the courts, I was assigned other cases, one of which defined my career. In the television reinactments of that case, I got to say a whole lot more than 'Take the bloody wall.'

Monday, September 15, 2014

Early this morning I was culling my research materials and came upon a file entitled "Guns". It contained an analysis of state and federal gun control law, some clippings from newspapers relating to gun shows, and a receipt for the firearm we purchased for our son-in-law as a personal wedding present. He was a law enforcement officer: a large screened television just did not seem right. Then I saw a legal form I did not immediately recognize until I began to read it. It was an application for a concealed weapons permit from the mid-1980's in handwriting that was mine. I had almost forgotten how it had come back to me without action having been taken, with a note attached from the under sheriff thanking me for withdrawing my application. I had,of course, done no such thing. It seems I was not on the list of those entitled to carry guns. I was not a convicted felon, or even a misdemeanant. I was a sworn Deputy District Attorney.

Had I been less politically naive, I might have seen it coming. The philosophy in the District Attorney's Office when I joined it was clearly segued to Lakers' fans who had graduated from USC or UCLA, were unabashedly masculine, and had confused Annie Oakley for Betty Hutton, who played her in the movie and probably never shot a live round in her lifetime; nor, I suspect, had they. I did not learn until I hired in that the office was operating under a consent decree; increasing the number of women lawyers was a mandate. That did not mean the idea was universally popular, or so I was eventually informed by my own supervisor who indicated he was not accustomed to the idea of women in the courtroom.

The term politically correct was not yet in use. Hillary Clinton would have been appalled to know there was an unwritten prohibition against women lawyers wearing pantsuits in court. In applying for a CCW I had performed an action flagrantly in violation of the image the administration had of what a new female deputy might do. Said the DA when he finally called to scold me personally, the way for a deputy TO assure his or her own personal safety was to be a tougher prosecutor. Yet, I never knew a lawyer whose trial stats did the job of a Kevlar vest. And there was reason behind my request.

At the time I applied for my CCW, I was making the circuit run to outlying courts from our residence in Apple Valley. Home base at the time was either Victorville, which serviced Big Bear and Trona, or Barstow, which handled the new municipal court in Morongo and the Justice Court in Needles. For those of you unfamiliar with those locations, it helps to know that San Bernardino County is the largest political subdivision in the U.S. that is not a state, and its population is clustered along the windward side of the San Bernardino mountains in the cities of Redlands, San Bernardino, Colton, Chino and Rancho Cucamonga. Everything west is either Los Angeles or Orange Counties, where there are such things as libraries and fashion malls with Nordstom and Neiman Marcus. Everything on 'the backside of the mountain' (Big Bear) and to the east is termed 'up the hill', and once you pass through Victorville on the I-15, the landscape is similar to what Neil Armstrong saw when he landed on the moon. If you doubt me, take a road trip to Trona, a community built near the spur of the Santa Fe railroad line that served the chemical plant of Kerr-McGee at Searles Lake. It is very much a company town. Look at a map of Highway 395 and find a place called Red Mountain and you will get a general idea of where the Trona cut off is located.

These were the roads I drove regularly and alone in a country car, an Opel that barely made it up the back side of Big Bear in second gear. During my second year in the district attorney's office, I tried twenty-three Driving Under the Influence cases and drove 25,000 miles. By year four I was trying felonies, and since we had no Superior Court in Joshua Tree, I took my felonies to trial in Barstow, 96 miles each way from home on desolate roads shared with outlaw bikers who over all were more considerate of me than I had anticipated. They did what they did, and I did what I did. It was the families of the burglars and child molesters I was prosecuting who tried to run me off the road. And in those days, those of us assigned to Morongo no longer had the luxury of a County car. We took our private vehicles. And once assigned there, we had three months to find a residence. That was the rule in 1984 when I was transferred to the Morongo Basin. My Lt.D. was the most conspicuous target traveling the 247 into Lucerne . The sheriffs at the Morongo station shared my husband's concern that riding so desolate a road could be dangerous, and I began firearms practice and bought a PPK from a law enforcement officer who was moving into Glocks. However, a gun was apt to do me little good in a lock box in the trunk of my Lt.D. At the suggestion of the guys at the Morongo Sheriff's station, I filled out an application for a CCW. And the proverbial caca hit the rotary blades of a fan located downtown in an office on Mountain View in San Bernardino. No one had apparently told me when I took my oath of office that I was surrendering my second amendment rights. The attitude of the administration was: D.A.s were not law enforcement officers and we did not wear badges and we did not carry guns. Our strength came with our law degrees. Generally I can accept the philosophy, but not when traveling after dark from Barstow to Joshua Tree on back roads.

The next country wide office meeting was in Victorville. Our chief deputy called to make sure I was coming from Morongo. Suddenly my attendance was mandated, when two weeks earlier we had been told to save the gas and stay in the Morongo Basin. When I walked into the meeting, most of the people I recognized were hypnotized by the pattern of the floor tiles. I do not remember much of the agenda--something about a Desert Division D.A. picnic that never quite came off, and then, the henchman for the D.A. gave a little speech about gunslingers and rule breakers. Then the chief investigator, a friend of mine who was obviously uncomfortable in the task, announced that one of our number had transgressed and applied for a permit to--God forbid (since the Constitution did not)--carry a firearm. Most of the audience sought out the biggest, toughest and meanest of the new D.A.'s and glared until he shrugged his shoulders and mouthed 'Not me.' No names were mentioned, but the audience of lawyers was smart enough to figure it out. Soon enough, I was targeted by twenty-five pairs of eyeballs. And on the following Monday the application I shredded this morning came in interoffice mail with a note thanking me for withdrawing it. It seems there had been some sort of gentleman's agreement between someone high in the sheriff's department and someone in the district attorney's office to stonewall my app. Assuming I would recognize the error in my ways, someone saved me the trouble of withdrawing the application by doing it in my name. Disposing it in that manner saved the sheriff's personnel the formality of rejecting it. Hence, the 'thank you' note.

I am happy to report that the next elected D.A. Dennis Stout and the one presently holding the office, an aggressive prosecutor and inspired leader Mike Ramos, were of a different ilk. Mike is complimented by high quality leadership in the San Bernardino Sheriff's Department under the past and current direction of retired Sheriff Gary Penrod and current Sheriff John McMahon. In 1994, Deputy District Attorney's were distributed badges. Both of mine--the one identifying me as a line prosecutor and the one I was given when I became a supervisor- retired when I did in 2004. They are proudly displayed in a shadow box in the room where I am writing this post. I never once flashed mine other than to identify myself to the senior volunteers of the Citizen's Patrol who guarded the perimeter at homicide scenes.

I never attempted to renew the CCW. The politicos down the hill had spoken, and my chief deputy who retired as ADA last year had supported their position. Since 1994, applications placed by my colleagues were routinely granted. When I stopped riding the circuit, the personal issue was moot, but the principle was not. For some obscure reason I kept the app. Today I shredded it, but the entire affair still bothers me. At least two criminal defendants attempted to put contracts out on my life during my years of murder prosecutions. I was told of the first by the defendant's attorney when he petitioned the court to be substituted off the case and asked my help in getting him an armed escort to the county line. I learned of the second from an inmate in Tehachapi who I had convicted but who believed I had done it fair and square. For better or worse, almost thirty years later I am still here,but so was the CCW application until I disposed of it this morning.

In 1993, the last year of the administration in power when I hired on, it was suggested by a top-ranking attorney in the administration that I run against our local sitting judge, who was considered unfriendly to law enforcement. My ego was stroked, but my husband convinced me not to attack an elected official even if we had opposing views on doctrines like Miranda: My husband pointed out he had been the people's choice and the community had faith in him even if our office did not. He still sits locally as a retired judge on special assignment. We may not agree on rules of search and seizure, but we stand together on issues of accountability and ethics.I consider him a valued friend.

That same winter San Bernardino courts were expanding and I sought an appointment to the bench. Without going through the arcane procedure of judicial appointments, it sounds impartial but in truth, it is highly political and it often is not the governor who calls the shots. Those of us who are shot down know very well who fired the bullets. Mine came from my own office, the same people who encouraged me to launch an expensive political campaign against someone they wanted removed. Criminal defense attorneys rated me highly qualified and called me' tough, but fair'.One of my own supervisors called me a 'loose cannon.' I got to see the entire body of remarks verbatim. The comments are anonymous, but they are not edited to protect the identities of the writers. Within a year the guy who had called me a loose cannon was ragging on the friend he had supported.My chief deputy apologized for an undeserved comment in a work evaluation when it was too late to matter.

Actually, I should kiss the men who shot me down, because my best years as a trial deputy were yet to come. And by the time I tried the case that defined the rest of my years as a prosecutor, there had been positive changes in the way business was handled in the district attorney's office. There also had been growth in my little corner of the desert. We had a three department Superior Court in Morongo where I live and I was no longer taking my show on the road. Assignments to Morongo, previously avoided like the pox, had become highly desirable. Recruits realized it was only a half hour drive from the Movie Star Enclave in Palm Springs and all those world class golf resorts of the Coachella Valley. My circuit days were over. I got to cook dinners for my husband and my sons. I was promoted. I was able to retire at the top of my game. That was ten years ago.

I am too old to let the rejected CCW application vex me. I love the life I led then and I love the life I lead now. Writing novels is less painful because my victims are imaginary. It does bother my son Russ and his lovely wife 'Cio that anyone with a computer can search my name and Google Map their way to my residence. And yes, that happens. With two giant arctic dogs with horrific barks, each weighing over 150 lbs, I do not get many visitors at the front door so I probably do not need the 9 mm. parabellum or the PPK or the mythical Uzi I joke about having mounted on the roof. Nevertheless, when I found the application today, it rekindled my sense of outrage for having been denied the right to carry one of them concealed on my person or in my car back in the days when I was younger and more vulnerable. There was no law then or now that prohibits me from carrying one on a hip holster on my walks should I ever feel the need.

I have not forgotten my attempt to exercise a Second Amendment Right in a legally permissible fashion resulted in my having been treated as if I were a crook. No matter what our individual attitudes toward firearms and gun control may be, the Second Amendment is not the only Constitutional Right subject to attack.I am exercising a First Amendment right as I prepare this post.

If the rights of citizens are not respected by the agencies mandated to serve and protect, and if those agencies are overseen by a government with an agenda which defies definition, in our present political climate Americans may soon realize just how fragile our liberties can become.

About Me

I was born in Cleveland. I Yahoo map my old house on Hillsboro Road. Grandfather's ghost would be delighted that the property now adjoins Endora Park. He was a gardener for the city. Growing up as the only protestant kid in a Catholic neighborhood in Cleveland prepared me for almost anything. Professionally, I loved being a trial lawyer, I loved prosecuting major crimes, and I loved relating to juries. I cried for the victims and I still do. On the day I retired I knew what I wanted to do and I am doing it!